Citation Nr: 0739560
Decision Date: 12/14/07 Archive Date: 12/19/07
DOCKET NO. 04-29 949 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Evaluation of reflex sympathetic dystrophy (RSD) of the
right ankle, currently rated as 20 percent disabling.
2. Entitlement to an increased rating for residuals of a
right ankle injury, currently rated as 20 percent disabling.
3. Entitlement to automobile and adaptive equipment, or for
adaptive equipment only.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
The veteran had active service from February 1990 to July
1991.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Albuquerque,
New Mexico.
In a May 2003 rating decision the RO increased the evaluation
of a right ankle injury to 20 percent effective January 14,
2003. In a November 2004 rating decision the RO granted
service connection for reflex sympathetic dystrophy of the
right ankle and assigned an evaluation of 20 percent
effective January 14, 2003.
In August 2006 the Board remanded the appeal for the
procurement of records from the Social Security
Administration.
The issues of entitlement to a higher rating for RSD of the
right ankle and automobile and adaptive equipment, or for
adaptive equipment only are addressed in the REMAND portion
of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
Residuals of a right ankle injury are manifested by marked
limitation of motion; there is no evidence of ankylosis of
the right ankle.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for
right ankle disability have not been met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.159, 4.1-4.16, 4.40, 4.45, 4.71, 4.71(a),
Diagnostic Code 5271 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006);
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable RO decision on a
claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486.
In the present case, the veteran's claim was received in
January 2003, after the enactment of the VCAA.
A January 2003 letter asked the veteran to submit or identify
evidence of increased disability. He was told that VA would
make reasonable efforts to help him obtain evidence
supportive of his claim.
A letter dated in August 2004 discussed the evidence of
record and told the veteran how VA would assist him in
obtaining evidence.
In November 2004, the veteran was apprised of the actions
taken by the RO. He was asked to send any additional
evidence that pertained to his claim. The evidence of record
was discussed and the veteran was told how VA would assist
him.
A September 2006 letter included a discussion of the manner
in which VA determines disability ratings and effective
dates.
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless error. Although the
notices were provided to the veteran after the initial
adjudication, the veteran has not been prejudiced thereby.
The content of the notice provided to the veteran fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only
has the veteran been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notices, but the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the veteran has been
afforded a meaningful opportunity to participate effectively
in the processing of his claims.
As the Federal Circuit Court has stated, it is not required
"that VCAA notification must always be contained in a single
communication from the VA." Mayfield, supra, 444 F.3d at
1333.
In addition, identified treatment records have been obtained
and associated with the record. Social Security
Administration records have also been obtained. A VA
examination has been conducted. Moreover, the veteran has
been afforded the opportunity to testify at a hearing before
a decision review officer at the RO. The veteran has not
identified any additional evidence or information which could
be obtained to substantiate the claim. The Board is also
unaware of any such outstanding evidence or information.
Therefore, the Board is also satisfied that the RO has
complied with the duty to assist requirements of the VCAA and
the implementing regulations.
For the foregoing reasons, it is not prejudicial to the
appellant for the Board to proceed to a final decision in
this appeal.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (2007). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
38 C.F.R. §§ 4.1, 4.2 (2007); see also Francisco v. Brown, 7
Vet. App. 55 (1994).
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior in undertaking the motion. Weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more or less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed injury,
as entitled to at least the minimum compensable rating for
the joint. 38 C.F.R. § 4.59.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more nearly approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3.
Normal ranges of ankle motions are 0 to 20 degrees for
dorsiflexion and 0 to 45 degrees for plantar flexion. 38
C.F.R. § 4.71, Plate II (2007).
The veteran's right ankle disability is rated pursuant to 38
C.F.R. § 4.71a, Diagnostic Code 5271, which provides that
limitation of motion of an ankle warrants a 10 percent
evaluation if it is moderate or a 20 percent evaluation if it
is marked. Higher evaluations are provided under Diagnostic
Code 5270 for ankylosis of the ankle.
The report of an April 2003 VA examination provides a
comprehensive history of the veteran's right ankle
disability. The examiner noted that since the veteran's
original injury in 1990, he had experienced almost constant
pain. The veteran reported that his pain was 10/10 and noted
that he had daily giving way of his ankle. He stated that he
limited walking to 10 minutes. Dorsiflexion of the right
ankle was to 15 degrees and plantar flexion was to 15
degrees, limited by pain. Inversion of the right foot was to
seven degrees and produced extreme pain. Eversion was to one
degree and also caused extreme pain. The pertinent diagnosis
was traumatic arthritis of the right ankle.
An additional VA examination was carried out in June 2004. A
review of the veteran's records was conducted. The veteran
reported pain on a level of 8-9/10 in his right ankle. He
reported swelling, locking, and instability of the right
ankle, as well as lack of endurance. He also reported
episodes of dislocation. The examiner noted that the veteran
used a cane and that he reported having used a walker
previously. Range of motion testing revealed dorsiflexion to
22 degrees and plantar flexion to 15 degrees.
Careful review of the record reflects that the veteran's
service-connected right ankle disability is manifested by
such findings as limitation of motion, pain at rest, painful
motion, and instability. However, he is in receipt of the
maximum evaluation for limitation of motion of the ankle. An
evaluation exceeding the currently assigned 20 percent
requires the presence of ankylosis of the ankle and there is
no evidence of ankylosis.
The Board accepts that the veteran has functional impairment,
pain, and pain on motion. DeLuca. However, neither the lay
nor medical evidence reflects the functional equivalent of
ankylosis of the ankle required for a higher evaluation.
Rather, the examinations of record have established that
while the veteran has marked limitation of motion of the
right ankle, he does in fact retain some motion.
The Board observes that the veteran is competent to report
that his disability is worse. However, he is not a medical
professional and his opinion is not competent in regard to
matters requiring medical expertise. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992). Rather, the more probative
evidence consists of that prepared by neutral skilled
professionals, and such evidence reflects that an evaluation
in excess of 20 percent for the veteran's right ankle
disability is not for application.
ORDER
Entitlement to an evaluation in excess of 20 percent for
residuals of a right ankle injury is denied.
REMAND
As an initial matter, the Board notes that the VCAA is also
applicable to the remaining issues on appeal.
Records received from the Social Security Administration
(SSA) include private treatment reports that discuss the
symptoms associated with the veteran's RSD. In May 2003,
S.G., M.D. indicated that the veteran would be an excellent
candidate for the use of a motorized apparatus to improve his
mobility. He noted that the veteran's RSD of the right lower
extremity was responsible for pain and swelling and that he
had undergone numerous treatments without improvement. Dr.
G.'s reports indicate that the entire right lower extremity
is affected by RSD. However, it is unclear whether the
entirety of the veteran's symptoms are related to the
original in-service injury to his right ankle.
The Board further observes that the AOJ has evaluated RSD
analogously pursuant to the diagnostic criteria for paralysis
of the sciatic nerve under 38 C.F.R. § 4.124a, diagnostic
code 8520. This criteria affords higher ratings for
moderately severe or severe paralysis, neuritis, or neuralgia
of the sciatic nerve.
The claim of entitlement to an automobile or other
conveyance and adaptive equipment, or adaptive equipment only
is inextricably intertwined with the claim for an increased
rating for RSD of the right ankle. Pending evidentiary
development of the RSD issue may reveal loss of use of one
foot, which is one of the requirements for automobile and
adaptive equipment. 38 C.F.R. §§ 3.808, 17.156 (2007). The
Board has therefore concluded that it would be inappropriate
at this juncture to enter a final determination on that
issue. See Henderson v. West, 12 Vet.App. 11 (1998), citing
Harris v. Derwinski, 1 Vet.App. 180 (1991), for the
proposition that where a decision on one issue would have a
"significant impact" upon another, and that impact in turn
could render any review of the decision on the other claim
meaningless and a waste of appellate resources, the claims
are inextricably intertwined.
In light of these circumstances, the Board has concluded that
further development is required. Accordingly, the case is
REMANDED for the following action:
Schedule the veteran for a VA
neurological examination to determine the
nature and extent of the veteran's reflex
sympathetic dystrophy (RSD). The
examiner should document all symptoms of
RSD of the veteran's right ankle, and
indicate whether the symptoms also affect
the remainder of the veteran's right
lower extremity. For each affected
nerve, the examiner should indicate the
extent of disability. The examiner
should note all manifestations to include
changes in sensation, strength, pain,
atrophy, temperature or skin.
The examiner should also provide an
opinion regarding whether there is loss
of use of the right foot caused by the
service-connected disability such that no
effective function remains other than
that which would be equally well served
by an amputation stump at the site of
election below the knee with use of a
suitable prosthetic appliance. This
determination should be made on the basis
of the actual remaining function of the
foot, and should consider whether the
acts of balance and propulsion could be
accomplished equally well by an
amputation stump with prosthesis.
The examiner should also provide the
rationale for all opinions expressed, to
include a discussion of other pertinent
evidence of record where indicated.
If upon completion of the above action the claim remains
denied, the case should be returned to the Board for further
appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs